Court of Appeals of Ohio, Seventh District, Mahoning
Appeal from the Court of Common Pleas of Mahoning County,
Ohio Case No. 14 CR 619
Plaintiff-Appellee: Atty. Paul J. Gains Mahoning County
Prosecutor Atty. Ralph M. Rivera Assistant Prosecuting
Defendant-Appellant: Atty. Ross T. Smith
Cheryl L. Waite Hon. Gene Donofrio Hon. Carol Ann Robb
Appellant Wayne Perry appeals from his convictions and
sentence following a Crim.R. 11 plea agreement he entered
into in the Mahoning County Common Pleas Court.
Appellant's counsel filed a no merit brief requesting
leave to withdraw. A complete review of the case reveals no
appealable issues. Accordingly, appointed counsel's
motion to withdraw is granted and Appellant's convictions
and sentence are affirmed.
and Procedural History
Appellant was charged with one count of receiving stolen
property, a felony of the fifth degree in violation of R.C.
2913.51(A), and one count of misuse of a credit card, a
felony of the fifth degree in violation of R.C.
2913.21(A)(1). The state later dismissed the misuse charge.
On April 14, 2015, the trial court held a plea hearing where
Appellant pleaded guilty to the sole charge in the
indictment. The state agreed to recommend the following
sentence: community control with local incarceration,
restitution, and a no contact order with the victims. The
state also agreed to stand silent as to judicial release. On
June 3, 2015, Appellant was arrested and charged with
felonious assault in Trumbull County.
On August 3, 2015, the trial court held a sentencing hearing.
Based on Appellant's pending criminal charge, the state
changed its recommendation in this matter to one year of
incarceration and restitution. The trial court noted that
Appellant had not yet been convicted of felonious assault,
but agreed with the state's recommendation based on
Appellant's lengthy criminal record. The court sentenced
him to one year of incarceration and ordered him to pay
restitution to the victims. The court suspended the fines and
costs. Appellant timely appeals.
Based on a review of this matter, appellate counsel seeks to
withdraw after finding no potentially meritorious arguments
for appeal. This filing is known as a no merit brief or an
Anders brief. See Anders v. California, 386
U.S. 738, 87 S.Ct. 1396, 18 L.E.2d 493 (1967). In our
district, it is referred to as a Toney brief. See
State v. Toney, 23 Ohio App.2d 203, 262 N.E.2d 419
In Toney, we established the procedure to be used
when appellate counsel wishes to withdraw from a case deemed
a frivolous appeal.
3. Where a court-appointed counsel, with long and extensive
experience in criminal practice, concludes that the
indigent's appeal is frivolous and that there is no
assignment of error which could be arguably supported on
appeal, he should so advise the appointing court by brief ...